Applicant v The Commonwealth of Australia as represented by the Australian Federal Police
[2023] FWC 2942
•10 NOVEMBER 2023
| [2023] FWC 2942 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Applicant
v
The Commonwealth of Australia as represented by the Australian Federal Police
(C2023/3652)
| COMMISSIONER SIMPSON | BRISBANE, 10 NOVEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 22 June 2023, the Applicant made an application under section 739 of the Fair Work Act 2009 for the Commission to deal with a dispute in accordance with clause 71 of the Australian Federal Police Enterprise Agreement 2017 – 2020 (AFP EA). Following a conference between the parties to the dispute on 24 July 2023, which was unsuccessful in resolving the dispute, directions were issued to the parties as follows:
1. The Applicant is required to file the following material in the Fair Work Commission, and serve a copy on the Respondent, by no later than 5.00pm on 7 August 2023:
(a) Any further submissions or evidence in support of the application, including any documentary material upon which the Applicant intends to rely.
2. The Respondent is required to file the following material in the Fair Work Commission, and serve a copy on the Applicant, by no later than 5.00pm on 21 August 2023:
(a) Any further submissions or evidence in response to the application, including any documentary material upon which the Respondent intends to rely.
3. The Applicant may file anything further in reply by 5.00pm on 28 August 2023.
The parties filed material in accordance with the directions. No jurisdictional issues were raised, and there was no dispute that the Commission had power to arbitrate the matter under the dispute settlement procedure in the AFP EA. Given the nature of the material filed it was agreed that a hearing would not be required and both parties consented to the dispute being determined on the papers.
A Confidentiality Order was issued to the parties on 29 August 2023, as some material contained sensitive information about police methodologies and covert operations. Accordingly, while certain material filed in this matter is not included in this decision, it has all been considered when reaching the conclusion regarding this dispute.
THE DISPUTE
Clause 64 of the AFP EA as it pertains to this dispute reads as follows:
“64 Employment Related Travel
(1) The AFP will meet all approved costs associated with AFP employment related travel requirements.
(2) Where an Employee on approved employment related travel is required to immediately return to duty, this section shall cease to apply.
(3) Where an Employee is performing operational duty and is in control of their full AFP issued controlled items they will be considered to be on duty and employment related travel provisions do not apply.
Ordinary Travelling Time (OTT)
(4) An Employee who is required to undertake travel for work related reasons travelling away from their usual place of work to an alternative location:
(a) within the hours of 0600-2000 Monday to Friday for Employees under a Support or Operations working pattern or assigned to a FTM Role; or
(b) within the Employee’s normal attendance pattern for Employees under a Rostered Operations working pattern,
will have the time spent in travel count towards their Normal Working Hours. The hours will not count towards penalties under any of the AFP working patterns.
(5) The Commissioner may grant, at the request of the Employee, a payment for work related travel that occurs within the timeframes outlined in sub-section 64(4). Where payment is approved, the Employee will be paid an additional Base Salary Hourly Rate for each hour of travel and any travel time paid under this sub-section will not count towards the Employee’s Normal Working Hours.
Excess Travelling Time (ETT)
(6) Where an Employee is required to undertake travel for work related reasons travelling away from their usual place of work to an alternative location, and the travel is:
(a) outside of the timeframes outlined in sub-section (4); or
(b) the travel occurs on a Designated Public Holiday,
the Employee will be paid an additional Base Salary Hourly Rate for excess time spent in travel provided that the entire period of travel (inclusive of OTT and ETT) exceeds 30 minutes on any calendar day. Any excess travelling time paid under this sub-section will not count towards the Employee’s Normal Working Hours.
(7) An Employee may, with the agreement of their Supervisor, elect to take time off in lieu of payment of excess travelling time calculated as Ordinary Time. Employees will utilise time off in lieu within the current Three Month Averaging Period or Roster Period.
(8) Time spent in travel is not considered as duty for the purposes of penalties payable under any of the working patterns and does not include time spent overnight as a result of a stopover between two destinations, including where the stopover consists of consecutive nights.
Rest Periods after Domestic Travel
(9) Where an Employee, other than an Air Security Officer on flight duty, is required to undertake domestic travel immediately before or after duty, and the combined travel and duty time exceeds 14 hours, the Employee must be provided with a Minimum Rest Period of 11 hours after the completion of the travel/duty prior to commencing their next period of duty. An Employee may return to duty prior to the completion of the Minimum Rest Period by mutual agreement and where there is an Operational Requirement.
(10) For the purposes of domestic travel, the duration of a flight includes one hour prior to departure and one hour after arrival and anytime spent in transit enroute to the final destination.
Rest Periods after International Air Travel
(11) Where an Employee, other than an Air Security Officer on flight duty, is required to undertake international travel (inclusive of any domestic leg/s that forms part of the continuous journey), the below rest periods will apply:
(a) An Employee must be provided with a minimum period of 12 hours rest after the completion of flights involving international travel, where their travel time exceeds 10 hours, prior to commencing their next duty.
(b) An Employee must be provided with a minimum period of 24 hours rest after the completion of flights involving international travel, where their travel time exceeds 18 hours, prior to commencing their next duty.
(12) By mutual agreement, and where there is an Operational Requirement, an Employee may return to duty prior to the completion of the Minimum Rest Periods in sub-section 64(11)(a) and (11)(b). Where this occurs they will be paid an additional Base Salary Hourly Rate for each hour worked and the hours worked will accrue as Ordinary Time towards the Three Month Averaging period for the duration of the next scheduled attendance (excluding Overtime and any recall to duty).
(13) For the purposes of international travel, the duration of a flight includes two hours prior to departure and one hour after arrival and any time spent in transit en-route to the final destination.
Rest Periods after Air Security Officer on Flight Duty
(14) Where an Air Security Officer performs flight duty on any flight the following rest periods will apply:
(a) for flights of more than six hours and up to and including 12 hours in duration, a minimum of 12 hours rest;
(b) for flight duration in excess of 12 hours and up to and including 18 hours duration, a minimum of 24 hours rest; and
(c) for flights in excess of 18 hours duration, a minimum 48 hour Rest Period, however under this sub-section an Employee, in agreement with their supervisor, may reduce the Rest Period to a minimum of 24 hours.
(15) For the purpose of sub-section 64(14), the performance of “flight duty” will include time spent in transit at an airport en-route to the final destination of the operational flight, inclusive of any sign on and sign off procedures as required.
Excess Travel Provision
(16) Where an Employee is required to stay away from their normal place of residence overnight for 30 nights or more for operational reasons in a Three Month Averaging Period, the Employee will be provided two days Stand Down during which eight hours per day will count towards the hours worked in a Three Month Averaging Period or Roster Period.
(17) The nights away can be consecutive or non-consecutive.
(18) Stand Down days under the Excess Travel Provision:
(a) must be taken within the Three Month Averaging Period in which the entitlement accrues or the next Three Month Averaging Period or Roster Period; and
(b) are not cumulative once one entitlement arises in a Three Month Averaging Period.
(19) The Excess Travel Provision does not apply when an Employee is:
(a) attending an approved AFP training or development course; or
(b) engaged in Air Security Officer Operational Requirements; or
(c) in receipt of a Critical Event Composite.”
RELIEF SOUGHT
The Applicant initially sought relief in the form of an order for backpay, however amended this through submissions to seek an interpretation of clauses 64(3), 64(4) and 64(6) of the AFP EA. The Respondent submitted the dispute relates to the proper interpretation of clauses 64(3), 64(4) and 64(6) of the AFP EA, and this is all that is necessary to resolve the dispute. The Respondent submitted Clause 71(14) of the AFP EA provides that the parties to a dispute agree to be bound by a decision made by the Commission according to its terms.
PROPOSED QUESTIONS FOR DETERMINATION
The AFP proposed that answers to the following questions will fully determine the issues in dispute between the parties:
a)Does clause 64(3) operate to create an entitlement for AFP members’ travel time to and from home to surveillance duties to be considered duty counting towards Normal Working Hours?
b)Does clause 64(4) operate to create an entitlement for AFP member’s travel time to and from home to surveillance duties to count as Ordinary Travelling Time (OTT)?
c)Does clause 64(6) operate to create an entitlement for AFP members’ to be paid an additional base salary hourly rate for Excess Travelling Time (ETT) for travel time to and from home to surveillance duties?
I consider that the questions as outlined above are appropriate to determine the dispute between the parties.
APPLICANT’S POSITION
The Applicant submitted that they worked in an AFP Surveillance team between 2013-2022. During this time, they were provided with an AFP vehicle (equipped with lights, sirens and a Police radio). The Applicant submitted they were directed to keep this vehicle at their home address and was also directed to store accoutrements. The Applicant submitted that they were given a time and start location for the next day, usually via SMS. At the start of the workday, they would place accoutrements in an approved carriage system on their person, place a number of items in the AFP vehicle and travel to the designated start location (which was not the usual place of work). During this journey, the Applicant submitted they were expected to monitor the work provided phone and Police Radio for updates to the start location, as well as intelligence updates.
The Applicant submitted the standard practice of time recording resulted in many discrepancies between the 'actual' times worked (as recorded by themself in the vehicle logbook) and the time recorded as it appears in the AFP's time recording platforms. It was submitted these discrepancies occurred as the only times that were permitted for entry and subsequent approval into the platform by supervisors were pre-determined hours. The Applicant submitted the entire team were allocated the same hours, regardless of where they travelled from, and this practice consequently resulted in issues with the accuracy of their time recording in addition to the accrual of unrecorded hours that were obtained through Ordinary Hours and Excess Travelling Time (ETT).
The Applicant submitted that daily travelling from their residential address to the start location, they would wear their accoutrements on their person and would be expected to deal appropriately with any situation requiring urgent police action utilising these accoutrements. The Applicant submitted they believed that by not including these travelling hours as operational duty ordinary hours, this contravenes clause 64(3) of the AFP EA. The Applicant believes this travel from their home address to a start location (and return journey) is operational duty.
The Applicant submitted that if the AFP do not classify this period of travel as 'Operational duty', and they have also clearly stated that the travel is business related, not private, then the only remaining classification they can see for this period of time is 'Work related travel', as defined by clause 64 (4) of the AFP EA. The Applicant submitted they believe the AFP are avoiding a possible ATO FBT liability, by instructing Surveillance members to complete the logbooks using the 'Business' usage type. Further that they then avoid paying their employees correctly by claiming that this business usage is not actually one for which they are classified as 'on operational duty' or 'Work related Travel.'
AFP POSITION
The AFP submitted the Applicant seeks to rely on an interpretation of clause 64 of the AFP EA to record additional normal working hours or attract employment related travel provisions, for time the AFP considers the member not to be on duty and to rather be undertaking local travel between home and work. The employment related travel provisions, sub-clauses 64(4) and 64(6) of the AFP EA, do not apply to the Applicant’s alleged unrecorded hours because during those hours the Applicant was not required to undertake travel away from his usual place of work to an alternative location for work related reasons.
The AFP submitted that the Applicant was also not ‘on duty’ or performing ‘work’ during the alleged unrecorded hours. The Applicant was on duty and performing normal working hours only from the commencement of the rostered shift, when they were directed to commence duty by the supervisor. A member travelling to and from home and work, who is in possession of their controlled items, can be considered to be neither undertaking employment related travel or be on duty; this is private travel between home and work.
AFP surveillance members ordinarily do not have an entitlement to record Normal Working Hours for duty, or to record OTT or ETT for travel time to and from home to surveillance duties for which clause 64 makes provision.
The AFP submitted that the evident purpose of clause 64 (employed related travel) is consistent with common provisions where employees are disadvantaged or inconvenienced by the requirement to travel away from their home and usual place of work.
Working Model
The AFP submitted that a member working in a role assigned to the Operations Working Pattern is required to demonstrate flexibility and to work the hours and patterns of attendance as directed by their supervisor on a 24 hour, seven days a week basis (including public holidays).
The AFP submitted the role attracts a core composite of 22% of their base salary in recognition of the requirements members demonstrate on the Operations Working Pattern (clause 18(6) AFP EA). Under previous enterprise agreements, including the period of 2013-2018 in which the Applicant was in a surveillance role, the role also attracted an additional high-volume composite of 35% of the member’s base salary (57% total). Clause 18 of the AFP EA reads as follows:
“18 Composite Allowances
(1) A composite allowance is an annualised allowance paid fortnightly.
(2) The composite allowances are the:
(a) Core Composite, which is payable in accordance with sub-section 18(6) below, in recognition of expanded working hours, normal patterns of attendance and shift patterns (such as Afternoon Shifts, Night Shifts, Weekends and Designated Public Holidays) that are required under the Operations or Rostered Operations working pattern; or
(b) Core Composite which is payable in accordance with the Fixed Term Mobility provisions in section 20 of this Agreement; and
(c) Critical Event Composite which is payable in accordance with section 28 of this Agreement.
(3) Where an Employee is in receipt of any composite allowance, the Employee is required to work in accordance with the expanded working hours and normal patterns of attendance for which the composite allowance applies.
(4) Where an agreed Individual Flexibility Arrangement that varies an Employee’s hours of duty is in place, consideration of eligibility for payment of the Core Composite will be determined by the Commissioner.
(5) A Core Composite allowance is not to be used for salary adjustments, experience premiums or additional hours of attendance and can only be approved prospectively.
Operations or Rostered Operations Core Composite
(6) An Employee who is required to work in accordance with the Operations working pattern or Rostered Operations working pattern will receive a Core Composite of 22% of their Base Salary which will count as salary for superannuation.
Operations High Volume Core Composite and Additional Composite
(7) Employees working Operations working patterns in high volume areas, as identified by the Commissioner, under section 23(3) of this Agreement, will receive a Core Composite of 22% which will count as salary for superannuation and an additional composite of 35% of their Base Salary. This additional composite is in recognition of the required additional hours and will not count as salary for superannuation.”
The AFP submitted a member’s ‘normal working hours’ are based on the working pattern to which the member’s role is assigned (subclause 16(6), 23(2) AFP EA). Any hours worked must be approved by the member’s supervisor prior to the hours being worked (subclause 16(7) AFP EA). Clause 16(6) and 16(7) read as follows:
“Hours of Attendance
…
(6) An Employee’s Normal Working Hours, based on the AFP working pattern to which the Employee’s role is assigned, are averaged over a Three Month Averaging Period or a Roster Period.
(7) Any hours worked must be approved by the Employee’s Supervisor prior to the hours being worked.”
Clause 23(1) and 23(2) read as follows:
“Operations Working Pattern
(1) An Employee working in a role assigned to the Operations (1) working pattern is required to demonstrate flexibility and to work the hours and patterns of attendance as directed by their Supervisor on a 24 hour, seven days a week basis (including Designated Public Holidays).
Standard Operations Working Pattern
(2) An Employee will work 40 hours per week averaged over a Three Month Averaging Period.”
The AFP submitted Members are provided with AFP vehicles and have approval within the AFP’s internal governance to store their AFP issued controlled items at home while not on duty. This allows members to enjoy the flexibility of not having to attend the Brisbane Airport premises at the start of each shift to collect their controlled items before duty.
The AFP submitted Northern Command practice a deployment model that factors travel time into members’ rostered shifts. The travel time is based on the task or target start location, and is attributed to their normal working hours. The travel time is:
· 30 minutes for tasks based in the Brisbane region; and
· 60 minutes for tasks based in the Gold Coast region.
The AFP submitted the model is designed to reflect the time it would take to get anywhere across Brisbane (30 minutes) and the time it would take to get to the Gold Coast (60 minutes) by car from the Brisbane Airport premises.
The AFP submitted the factored travel time applies irrespective of where a member chooses to reside. The model equalises hours worked by all members of the cohort, and alleviates inequalities of working hours ‘on target’ caused by different distances members live from start locations because of their chosen residence.
The AFP submitted it is not unusual for a member to benefit from the model by coincidentally residing close to a start location, requiring shorter travel time than the travel time factored into the shift.
The AFP submitted this is a mutually beneficial policy model the AFP can provide within the bounds of the AFP EA, and which the majority of members are comfortable with and enjoy.
The AFP submitted it is well established that local travel between home and work is a private activity and not work. Any time a member spends travelling outside the rostered shift is private travel from work to home, and not duty. The time does not count towards members’ normal working hours or attract any employment related travel entitlement under the AFP EA.
The AFP submitted the 30 or 60 minute travel time factored into the shift is a policy position taken to benefit the member. That time would not otherwise be considered duty or ‘work’[1] but for the supervisor permitting it within the rostered normal working hours.
Interpretation of AFP EA
The AFP submitted the principles for the interpretation of an enterprise agreement were distilled in The Australian Meat Industry Employees Union v Golden Cockerel,[2] and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd (Berri).[3] The relevant principles were recently summarised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V) v Programmed Industrial Maintenance Pty Ltd.[4]
As summarised in AMWU v Programmed Industrial at [38]:
“The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction.”
The AFP submitted the authorities provide that the starting point is consideration of the ordinary meaning of the words, read in context and taking into account the purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The language of an agreement must also be understood in light of its industrial context and purpose.
Ordinary Travel Time and Excess Travel Time
The AFP submitted Sub-clause 64(4), Ordinary Travelling Time (OTT), and sub-clause 64(6), Excess Travel Time (ETT) provide provisions applicable to employees who are required to undertake travel away from their usual place of work to an alternative location for work related reasons. This is the type of travel considered to be ‘employment related travel’ within the context of clause 64 of the AFP EA.
The AFP submitted that employment related travel provisions as provided in clause 64 ordinarily apply consistent with common provisions where employees are disadvantaged or inconvenienced by the requirement to travel away from their home and usual place of work.[5] This is the evident purpose of clause 64, and is reflected in clauses 64(4) (OTT) and 64(6) (ETT), which apply only when an AFP employee “...is required to undertake travel for work related reasons by travelling away from their usual place of work to an alternative location.” Clause 64 is generally intended to capture travel distances that require overnight stays, or domestic interstate or international travel. Clause 64 as a whole is not intended to capture and does not capture ordinary or common travel from home to work. Clause 64 does not operate to create any provisions applicable to AFP surveillance members’ travel from home to surveillance duties.
The AFP submitted sub-clauses 64(4) and 64(6) do not provide a travel related entitlement for local travel between home and work.
The AFP submitted sub-clauses 64(4) and 64(6) do not apply to the Applicant’s alleged unrecorded hours because during those hours the Applicant was not required to undertake travel away from the usual place of work to an alternative location for work related reasons.
The AFP submitted the Applicant’s alleged unrecorded hours are local travel from their home to their usual place of work, South East Queensland.
Distinguishing operational duty from employment related travel
The AFP submitted Considering Berri, noting subclause 64(3) is placed within clause 64, subclause 64(3) must be read in the context of the employment related travel provisions within clause 64.
The AFP submitted subclause 64(3) provides when employment related travel provisions do not apply because the employee is considered to be on duty, where they could otherwise be considered to be undertaking employment related travel.
The AFP submitted the purpose of subclause 64(3) is to express whether employment related travel provisions (such as ETT) or the provisions of the employee’s work pattern (such as safety net provisions and penalties) apply.
The AFP submitted subclause 64(3) does not express that a member in possession of their controlled items is automatically considered to be on duty when they are not considered to be undertaking employment related travel.
The AFP submitted a member travelling to and from home and work, who is in possession of their controlled items, can be considered to be neither undertaking employment related travel nor be on duty.
‘On duty’
The AFP submitted further, for the Applicant to be considered to be on duty during the alleged unrecorded hours subclause 64(3) provides they must have been performing operational duty and be in control of their full AFP issued controlled items.
The AFP does not dispute that surveillance members are usually in possession of their AFP issued controlled items when leaving their home to perform surveillance duties. However, members are not performing operational duty or ‘work’ during the time travelled from their home to their task or target start location.
The AFP submitted in accordance with subclause 16(7) of the AFP EA, any hours worked must be approved by the employee’s supervisor prior to the hours being worked. Members cannot perform duties unless, in this case, rostered or directed to do so.
The AFP submitted further, members are not expected to perform any pre-commencement activities that would render any private travel undertaken before the shift commencement time to be operational duty or ‘work.’[6]
The AFP submitted while members may monitor their phones or radios for updates, members are not required to. Many members do not turn their radios and tracking systems on until they are in proximity of the target, being during the 30 or 60 minutes of travel time counted towards their normal working hours at the commencement of their shift.
Response To Applicant’s Contentions
The AFP submits in response to the Applicant’s materials that:
(a)The Applicant’s interpretation fails to read clauses 64(3), 64(4) and 64(6) in the context of the whole of clause 64. The interpretation fails to consider the possibility AFP surveillance members are not, at all, undertaking employment related travel or on duty when travelling to and from home to work.
(b)The Applicant is required to complete a logbook for travel to and from home to work because he receives an employment benefit of an AFP provided vehicle to undertake that travel. The AFP must properly record certain information to meet its reporting and tax obligations to the Australian Taxation Office for the AFP vehicle. The AFP’s governance on usage of AFP vehicles does not assist in the interpretation of clause 64 and should not be considered.
(c)The pre-commencement activities expected of AFP surveillance members when travelling to and from home to surveillance duties are to the benefit of the member,[7] and they are otherwise remunerated by reason of receipt of the 22% core composite.
(d)When surveillance members are requested or directed by their supervisor to respond to an incident and their shift has not yet commenced, the member is considered to be on duty from the time their supervisor requested them to respond, and members are properly remunerated from such time.
AFP Provided Vehicles and ATO Private Tax Ruling
The AFP provides surveillance members AFP operational vehicles, and allows members to store those vehicles at their personal residence. This is a benefit for members.
Without an AFP provided vehicle that can be stored at the member’s personal residence, members would otherwise:
· be required to use a private vehicle and claim a tax deduction for the cost of transport; or
· receive an allowance from the AFP to cover the cost of privately organised transport; or
· be required to travel privately to the AFP’s Brisbane Airport premises and collect an AFP vehicle to commence duty.
On 28 August 2008, the AFP was notified of a private ruling about the applicable classification of those vehicles for the purposes of calculating fringe benefits tax that confirmed the AFP could classify the journeys as business. The AFP submitted the ATO ruling that surveillance members are itinerant employees is strictly for tax purposes, and has no impact on the Applicants entitlements under the AFP EA.
APPLICANT’S REPLY
The Applicant submits the Respondent’s own material supports the contention that the unrecorded portion of travel is business use, not private travel. The Applicant disputes the Respondent’s interpretation of their usual place of work. The Applicant also submitted that the Respondent’s guide to completing logbooks states that surveillance team members are classified as itinerant workers meaning they are considered to commence work when they leave home each morning.
The Applicant also submits that there are benefits to the Respondent in having the storage of vehicles and accoutrements at home. The Applicant also submitted the timeframes allotted for travel are unreasonable and the 30/60 minute allocation was a blanket approach.
The Applicant submits that the AFP vehicle is provided as they may be required to use it for operational purposes and not for going to and from their normal place of work.
The Applicant submitted the composite payment is irrelevant to the dispute.
The Applicant asserts that they perform operational duty before leaving their home by inspecting the vehicle and wearing accoutrements. The Applicant asserts during the journey they are expected to conduct surveillance, monitor the radio, phone and tracking systems. The Applicant asserts that they were directed when to be on duty and they obeyed the directions, however argues that they were then expected to conduct operational duty outside those times.
It is submitted that if the Commission deems the journey is not operational duty from home, then under clause 64(4) and (6) it is work related travel as the travel is for work related reasons, is away from their usual place of work being the office base, and the travel is to an alternative location. The Applicant asserts they have never heard of Southeast Queensland described as their usual place of work.
Finally, the ATO Ruling has deemed the travel as work related travel. The Applicant also relies on the AFP Guide for Completing Log Books to support this submission.
The Applicant refers to clause 18(5) of the AFP EA which includes a statement that the “core composite allowance is not to be used for … additional hours of attendance.”
CONCLUSION
I am satisfied that the Operations working pattern affording 30 minutes or 60 minutes paid time depending on the location of the work, is intended to operate in the manner as submitted by the Respondent. It is clear that the AFP EA does not operate in the manner as has been submitted by the Applicant, that being that the Applicant is on duty from the point at which they commence to travel to work at a designated location when that travel is in a location in the region of Brisbane or the Gold Coast within the Northern Command. I agree with the Respondent’s submission that the employee is on duty and performing normal working hours only from the commencement of their rostered shift, when they are directed to commence duty by their supervisor.
I also agree that the disputed travel is local travel not intended to be caught by clause 64(4) or 64(6), and that the performance of work within the Brisbane or Gold Coast area could properly be described as the Applicant’s usual place of work under the arrangements within the Northern Command under the terms of the AFP EA, and the Applicant’s usual place of work is not intended to be limited to the Airport Office.
I also agree with the Respondent’s submission that the ATO Ruling does not assist the Applicant as it is intended to operate for taxation purposes and it is not directed to the interpretation of the AFP EA, and specifically what is meant by the terms ‘operational duty’ or ‘on duty’ in the AFP EA.
For the reasons set out above the answers to the questions for interpretation are as follows:
Does clause 64(3) operate to create an entitlement for AFP members’ travel time to and from home to surveillance duties to be considered duty counting towards Normal Working Hours? No.
Does clause 64(4) operate to create an entitlement for AFP member’s travel time to and from home to surveillance duties to count as Ordinary Travelling Time (OTT)? No.
Does clause 64(6) operate to create an entitlement for AFP members’ to be paid an additional base salary hourly rate for Excess Travelling Time (ETT) for travel time to and from home to surveillance duties? No.
COMMISSIONER
[1] SDA v Aldi Foods Pty Ltd [2022] FedCFamC2G 799.
[2] [2014] FWCFB 7447.
[3] [2017] FWCFB 3005.
[4] [2022] FWCFB 3456.
[5] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian
Manufacturing Workers' Union (AMWU) (188V) v Programmed Industrial Maintenance Pty Ltd T/A Programmed
[2020] FWC 5518, at [64].
[6] SDA v Aldi Foods Pty Ltd [2022] FedCFamC2G 799.
[7] Construction, Forestry, MMEU v Peabody Energy PCI Mine Management Pty Ltd [2019] FWC 4641 at [16] as cited in Shop, Distributive & Allied Employees' Association v Aldi Foods Pty Ltd [2022] FedCFamC2G 799 at [37] – [39].
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